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The Growth of a Universalistic Legal System in India

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The Growth of a Universalistic Legal System in India

If we follow Emile Durkheim, law is a “visible symbol” of the invisible fact of social solidarity in a society; society being a moral phenomenon eludes measurement or observation through other (than law) objective indices. He also maintains that, “custom is not opposed to law, but is, on the contrary, its basis,” and these two together provide an indirect measure of the nature of social solidarity or the extent of internal differen­tiation within a particular society.

In exceptional circumstances, however, a conflict between customs and law might arise, but this, according to Dur­kheim, is mainly due to ‘force of habit’ which drives a wedge between custom and law. However, Durkheim did not anticipate the conflict between custom and law, as in India, based on the historical processes of cultural encounters and diffusion of heterogeneous traditions of legal norms.

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However, his emphasis on law as being the objective effect of the causes of social solidarity and (we might add) social processes, adds a new significance to the study of change through the study of transformations in the customs and laws of the Indian society.

In fact, diffusion of new legal norms and gradual emergence of a univers­alistic form of positive law in India does itself mark the beginning of a new tradition … a change from status to contract, from hierarchy to universal- equity and equality. In the Great tradition of both Hinduism and Islam, the norms which constituted the foundations of the legal system were an extension of the principle of hierarchy.

The dharmashastras clearly lay down differential standards of legal rights and administration of justice based on the recognition of qualitative-astrictive status of various castes and classes to which the standards of legal sanctions were graduated.

“Thus, a Brahmin slandering a Kshatriya should, according to Manu, pay a fine of fifty panas, but for slandering a Vaisya or a Shudra the fines are only twenty-five and twelve panas, respectively. For members of the lower orders who slander their betters the penalties are much more severe. Similar gradations of penalty according to the class of the offender are laid down for many crimes and the equality of all before the law was never admitted in ancient India, and was quite contrary to most Indian thought.”

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However, to this we must add that, whereas by their social status the higher classes enjoyed superior legal rights, in relation to conformity with higher ethical standards, traditional Hindu law set more rigorous standards for them from which the lower sections of the community were either exempted or for the violation of which they were punishable with comparative leniency.

Bhasham writes:

In fairness to the Hindu legal system, we must note that it did not always work in favor of the Brahmin. Manu lays down that as the penalty for theft the Shudra should pay a fine equal to eight times the value of the stolen goods, while the Vaisya, Kshatriya and Brahmin should pay sixteen, thirty-two, and sixty-four times the value, respectively. The upper clas­ses were expected to follow higher standards of conduct than the lower, and their theft were correspondingly more heinous.

In both instances, however, we come across the principle of hierarchy. In Hinduism, the innate moral and qualitative attributes of men have been conceived of hierarchically, and these differ in men according to their birth in high or low castes. The men in the higher castes are, therefore, expected to be also having a higher level of charismatic moral endowments in com­parison to those at the lower level.

Hierarchy of charismatic qualities (guna) in human nature, to which reference has been made before logically fits in with this form of particularistic and non-equalitarian system of law, which imparts justice not on the basis of equity and individual responsibility but on the ground of holistic group or caste affiliation or status of a person.

Theoretically, such a system of law could be treated to be logically consistent with the Hindu phenomenology of human nature and the conception of social structure. But in practice there have always been variations in the functioning of this system.

As in the case of the other aspects of Hindu tradition, in respect of legal system too, there has been a lag between the textual records and contextual functioning. The legal system and its practices were constantly being adapted to regional and sub-cultural requirements as were dictated by the needs of ethnic assimilation and historical circumstances.

Apart from the dharmasastras (law books), local customs and royal decrees modified the contextual significance of the socially operative legal norms and its social structure. Despite these regional and contextual variations the parti­cularistic and hierarchical nature of the Hindu legal systems persisted. It continued to be group-oriented and non-equalitarian or astrictive in­stead of being individual-oriented and universalistic.

The impact of the Muslim culture and administration did not bring about any basic change in the qualitative nature of this legal system. Muslim law was itself in many ways particularistic. “Evidence of non-Muslims was inadmissible against Muslims, a rule which made it impossible to hold the scale of justice evenly in cases between Hindus and Muslims….The sons or next of kin….were free to pardon the murderers of parents or kinsmen”.

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At the time of the contact of the British with the Indian society, the legal system which existed in various parts of the country was still particularistic and non-equalitarian. Towards the end of the 18th century most of the cen­tral India and the Deccan was under the domination of the Marathas and in these areas Hindu form of legal administration operated. Whatever accounts are available reveal, that justice was inequitable, often arbitrary and without conforming to any systematic logic of law.

Certain groups such as the Bhats in Gujarat and Brahmins in the north used to maintain their privileges under the threat of committing suicide (traga in west India and dharna in the north), of which people were highly apprehensive since they believed the sins of such a death would fall upon them.

Operation of law and administration of justice was highly mixed up with local customs, people’s superstitions and the non-equalitarian values of the traditional Hindu and Islamic legal codes. The operation of the law was also partial owing’ to the lack of law and order and an organized form of political structure in the country.

With the establishment of the British power in India there came a new turning point in the legal system of the country. Various forms of legal innovations were introduced by the British which were in contradistinction with the traditional Hindu law, and were based on the principles of universalism, rationalism and individualism.

Legislation thus became an instru­ment of modernization. Its growth was, however, slower and in one respect it might be true to say that gradually a synthesis was taking place between the traditional and modern legal forms and practices reflecting the over-all process of synthesis between tradition and modernity in India.

The foundations of the new jural system were laid down by Warren Hastings. He was for a decentralized system of law courts to conduct civil and criminal justice in the districts. These were all Company’s courts; Supreme Courts, first in Calcutta and then in Madras and Bombay were also established under a royal charter based on the provisions of the Regulating Act of 1773 enacted by the British Parliament to control the activities of the East India Company.

The Supreme Courts or King’s Courts were separate from the Company’s courts and exercised no juris­diction over the latter. So, for a time there existed a dual form of administration of justice which was confusing and often led to hardship for the people.

This was removed by 1861 when the enactment of the Indian Penal Code and the Codes of Civil and Criminal Procedure rendered it possible to have a systematic control on lower courts in each province by a provincial High Court vested with powers to hear appeals from these lower courts. Above these lower courts and the High Court’s was the Judicial Committee of His Majesty’s Privy Council as the court of ultimate appeal, vested with highest powers.

In the growth of this jural administration and its legal normative structure a novel feature was the separation between the judicial and executive func­tions and powers of courts. The credit for this goes to Cornwallis who first introduced it in Bengal and later the same model was followed by other provinces.

The sociological significance of this system was that even the governmental executive decisions were now contestable in civil courts, thus providing a foundation for the rule of law and right of liberty and justice. But still the legal norms, specially, in respect of domestic and personal realms, were heterogeneous consisting of such diverse legal traditions as the English, Hindu, Islamic, Parsi, Customary and Tribal. Even within some of these traditions there were regional variations.

Nevertheless, establishment of a uniform system of legal rights and its administration which was achieved with the stabilization of the British rule in the third quarter of the nineteenth century brought about many forms of cultural changes.

Firstly, its emphasis was on humanistic values. Many social customs which violated the norms of human dignity and per­sonal security and freedom were legally abolished. Suttee (widow burning) was declared illegal in 1829. Claims to slaves were abolished by law in 1843.

Earlier, in 1832 the trade in slaves from one district to another was made a penal offence. In 1850, Caste Disabilities Removal Act was passed which guaranteed freedom of conscience and right to keep one’s property and inheritance rights even after conversion to a different faith. An Act legalizing the remarriage of the Hindu widows was passed in 1856.

These changes were introduced during the pre-Mutiny period, which was marked by an extraordinary enthusiasm of the British administrators to introduce radical changes in the indigenous Hindu social customs and cultural practices which were inhuman and unhealthy; it was also followed by their zeal to introduce new liberal institutions based on Western cultural patterns.

The Mutiny of 1857 dampened this enthusiasm of the British adminis­tration for social reforms. But directly or indirectly the process continued and most of the basic changes in the legal system of India, which had a modernizing effect on its culture, were introduced during the post-Mutiny period. Lindsay writes:

The first Law Commission, under the presidency of Lord Macaulay, was set up in 1834; its most notable achievement was the production of the draft of the Indian Penal Code, which, however, did not become law until 1860.

Macaulay’s Commission also drew up a number of reports which embodied proposals for legislation and which fell under the con­sideration of a succession of Law Commissions which sat in England at various times between 1853 and 1870 and whose efforts led to the enact­ment of the Codes of Procedure, civil and criminal, in 1859 and 1861, respectively.

This latter year also marked the unification of the judicial system in India by the amalgamation of the Supreme and Sadar Courts into the High Courts. The later fruits of the labor of these Commis­sions were the Succession Act (1865), the Limitation Act (1871), the Evi­dence Act and the Contract Act (1872), and still later, under the direction of the (Government of India, there came the Specific Relief Act (1877), the Negotiable Instruments Act (1881), the Trust Act (1882), the Transfer of Property Act (1882), and the Easement Act (1882).

By this time, it may be said, the process of codification came to an end, though fur­ther legislation of a comprehensive character was undertaken to define the law of land tenure for the various provinces. This shows the radical character and sweep of the new legal norms which were introduced for the administration of justice in India. Much of its basic formulation was completed by the end of the nineteenth century, but since then new additions have been going on. Legislations introducing social reforms in many sensitive areas of Hindu customs continued.

In order to accommodate the marriage customs of the Brahmos, who claimed no formal membership with any religion, a Native Marriage Act III was legislated in 1872, which in an indirect form was like a civil marriage law, since it permitted marriage between two persons who were or claimed to be outside the membership of various religious groups in India.

This was the first secular legislation of its kind. In 1891, another controversial legislation in the field of marriage, the Age of Consent Act, was passed. This was further modified in 1929 when the age of consent for marriage of girls was raised to thirteen years from ten.

In fact, the legislation raising the age of consent for marriage of girls was a very human need. But the conservative sections in India, including even eminent leaders like Tilak were opposed to it and treated it as an intrusion on the Hindu culture.

A month after the Age of Consent Bill became an Act, Tilak wrote (April 12, 1891) in the Mahratta, “We are very sensitive and we feel nothing so much as an attack on our national character. That the Age of Consent Act will write in the statute book the character of the Indian nation in the blackest letters is our grievance- so long as this certi­ficate of bad character remains on the statute book we can enjoy no rest.”

Tilak’s exhortations deeply stirred nationalistic feeling and motivation for self-reform and reinforced the conservative nationalist faction in India. Despite this, how badly such social reforms were required is clear from the fact that in the Census of 1881 in Bengal 14 per cent of all Hindu girls in the age of ten were either married or widowed. Same figure for Bombay was 10 per cent and for Madras 4.5 per cent.

The problem of widowhood was equally worse. In 1931, 21 per cent of women in Bengal between the ages of 15 and 40 were widows. Evidently, legislation to enforce humanistic reforms in marriage customs was highly justified.

Towards the end of the nineteenth century legislation became more diversi­fied and attuned to the expanding economic, industrial and political require­ments of the time. India had now entered into the age of mass communications through post office, printing and press. In 1878, a Press Act came into being to be followed by the News Papers Act in 1908.

Much legislation was enacted for the welfare of factory workers as the number of factories increased. The Factory Act was first passed in 1881 and then successively revised in 1891, 1925, and 1931 and later. Bengal Tenancy Act was legislated in 1885, setting a pattern for reform of land tenures. In 1904, a Co-operatives Act was passed.

Without going into the details of other enactments, in the fields of industry, communication, penal codes, and civil rights and customs, it may be noted that by the first quarter of the twentieth century a uniform all-India pattern was established in the form of judicial administration based on a homogeneous normative structure of law.

Sociologically, the content of new legislation was as important as its pan-Indian character which created an institutional base for a new national identity and processes of cultural modernization.

However, more radical social legislations in the field of Hindu personal law and custom had to wait till the dawn of freedom, which introduced a new era of radical social legislations. The beginning was made with the enactment of the Constitution itself which guaranteed to all citizens with­out discrimination of religion, caste, sex, place of birth, equality and free­dom before law. It also abolished the practice of untouchability in any form, striking at the very root of the Hindu system of caste.

This was followed by legislations like the Special Marriage Act (1954). Hindu Mar­riage Act (1955), Dowry Prohibition Act (1961), Children’s Act and many other welfare legislations for the underprivileged classes and tribes in India54 which if set into actual operation would change the very fabric of Hindu society.

These legal innovations provide us examples of gradual spread of modern­izing cultural norms in Indian society. It is true that until Independence, many aspects of the Hindu customary and personal law were left intact by the British. Despite this, they had introduced numerous enough legis­lations to change the very form of rural administration and relationships pertaining to the economic, commercial and social institutions.

Firstly, the rural postulates emphasized “equality in the eyes of the law, judicial ignorance of the complainants, the ideal that economic relations are based on contract not status, the goal of settling the case at hand and only in that case, and the necessity of a clear-cut decision rather than compromise,” which in ethos and procedure were fundamentally different from the tradi­tional pattern.

From a cultural point of view the impact caused a major breakdown in the principles of hierarchy and holism, the two pivotal value systems of the traditional culture. Hierarchy was abolished in the new legal system which was anchored in the norms of equality and equity in matters of its administration.

Justice founded upon new legal norms did not have in­equitable standards based on distinction between one caste and another. Not only in theory, but also in actual practice the introduction of new legal norms led to breakdown in many hierarchical values and relations in the social system.

O’ Malley writes:

Two results of the judicial system may be briefly noticed, viz., the establish­ment of the principle of equality and the creation of a consciousness of positive nights. The last was a plant of slow growth owing to the abject submissiveness of the lower classes, which prevented them from taking advantage of the system of equal laws and vindicating their rights by legal action. A change was gradually effected.

In 1841, for example, it was noticed that the Chamars, despised untouchables of northern India, were not afraid to bring suits against their landlords, and it was added, “Nothing vexes or annoys the zamindars in our whole system so much as this.”

In assessing the extent to which legal innovations have succeeds in realizing egalitarianism in social justice, a distinction may be maintained between the potential and actual change. Law in India has introduced many factors leading to the possibility of changes in the customs and structure of the Indian society. But have these potentialities for change kept pace with actual rate of change? Its evaluation in the absence of empirical data may not be perfect, but the indications are that actual changes are much slower considering the form of legal radicalism in India.

In a compa­rative study of this phenomenon at village level Bernard S. Cohn points out that although the lower classes in villages have become increasingly conscious of their legal rights and often even try to enforce it through law courts, they are rarely successful.

The superior knowledge and economic resources of the upper caste villagers always tends to foil the effort of the lower classes for legal equality and redressing of their grievances. Yet, most villages now have a class of people who are supposed to be experts in the matters concerning law and law-courts and serve as village-level legal advisers and as go-betweens for urban lawyers and villagers.

Nevertheless, compared to the personal laws (those related to family, marriage, divorce, adoption, joint family guardianship, minority, legitimacy, inheritance, succession and religious endowments) the impact made by the legislations about land rights, commerce, trade, industries and labor, etc., which involve the material interests of the people directly has been relatively greater. In case of personal law, recourse to it appears to be greater in cities than in villages and more among the educated than the illiterate.

The actual changes, which legal innovations have brought about in hierar­chical social relationships, might be less than expected, but from a cultural point of view great significance is also laid on efforts to change such relations which fail or which are mere potentialities. As the number of edu­cated and urban citizen’s increases, the potential rights guaranteed by law would be increasingly converted into realities. The trend in this direc­tion is already there.

Holism is another characteristic of Hindu tradition which is materially affected by legal reforms. Traditional culture did not treat individual to be the unit of social and cultural participation: for all modes of interaction the household, clan, sub-caste and caste were recognized social units.

Now, the legal and administrative innovations recognize only the individual as the unit in all matters of negotiation. This marks a major break from the tradition. The impact of change is magnified since individualism in legal normative structure is also coupled with values of rationalism and universalism rendering it specially modernizing in significance.

O’ Malley says that:

“The spirit of individualism, to which other factors have also contributed, has already done much to modify the organization of a society of which the group rather than the individual is the unit and in which a man’s status is determined by the rights which belong to him as a member of a group”.

Cultural modernization through legal innovations, therefore, proceeds in India in many forms. It operates by posing a challenge to the time honored traditional value systems of hierarchy and holism. It produces changes also of a systematic and pan-Indian character by being a part of a uniform judicial administration, which constitutes a new cultural Great tradition in India.

It serves the objectives of modernization by also educat­ing people in the culture of individualism and rationalism and consciousness of their rights and obligations. Finally, it contributes to the growth and multiplication of modern legal professions and new professional norms, leads to the establishment of rule of law which, as Weber had postulated, reinforces the growth of a viable and rational economic system, so essential for modernization.